An Overview of Special Stamp Duty, Buyer's Stamp Duty and Ad Valorem Stamp Duty - OKAY.com

Nature of property affected:

Residential [1]

Residential

Residential and Non-Residential

Summary:

SSD is payable on any residential property acquired, either by an individual or a company, and resold within (i) 24 months if the property was acquired between 20 November 2010 and 26 October 2012; or (ii) 36 months if the property was acquired on or after 27 October 2012. SSD is assessed at rates varying from 5% to 20% (depending on the period the property was held for) and is payable in addition to Original AVSD or New AVSD and BSD (as applicable). There are certain exemptions, as set out below.

BSD of 15% payable (in addition to New AVSD and SSD, where applicable, which may be payable) on the acquisition of residential property by persons who are not HKPR [2] who are acting on their own behalf [3], and the acquisition of residential property by companies. There are certain other exemptions, as set out below.

New AVSD is payable on the acquisition of any residential or non-residential property except by a HKPR acting on his own behalf who does not own [4] any other residential property in Hong Kong at the time of the acquisition. Such HKPR will pay Original AVSD. There are certain other exemptions, as set out below. If an exemption applies, either Original AVSD will be payable, or no stamp duty will be payable/relief will be available.

Effective Date:

· Introduced with effect from 20 November 2010.

· Application extended and rates increased with effect from 27 October 2012.

27 October 2012.

23 February 2013.

Status of legislation:

· Introduced by the Stamp Duty (Amendment) (No.2) Bill 2010, which was passed by the Legislative Council on 22 June 2011.

· Introduced by the Stamp Duty (Amendment) Bill 2012 to extend the application of SSD, which was passed as the Stamp Duty (Amendment) Ordinance 2014 and was gazetted on 28 February 2014.  The law has retrospective effect from 27 October 2012.

Introduced by the Stamp Duty (Amendment) Bill 2012, which was passed as the Stamp Duty (Amendment) Ordinance 2014 and was gazetted on 28 February 2014.  The law has retrospective effect from 27 October 2012.

Introduced by the Stamp Duty (Amendment) Bill 2013, which was gazetted on 5 April 2013 and introduced into the Legislative Council on 17 April 2013. Currently being reviewed by the Bills Committee.

Rate of stamp duty payable:

Between 5% and 20% on the stated consideration or the market value of the property (whichever is the higher), depending on the period for which the property has been held. In addition to any Original AVSD/New AVSD and BSD which may be payable. Please see Appendix 2.

15% on the stated consideration or the market value of the residential property (whichever is the higher), in addition to any Original AVSD/New AVSD and SSD which may be payable.

· A new top rate of 8.5% is payable on transactions valued at more than HK$21,739,130 (stated consideration or the market value of the property, whichever is the higher). SSD and BSD may be payable in addition to New AVSD.

· Original AVSD is only payable if one of the exemptions referred to below applies.

Persons/entities affected (subject to the exemptions/reliefs referred to below):

All persons and entities selling or transferring residential property acquired on or after 20 November 2010 within:

(i) 24 months of the date of acquisition if the property was acquired between 20 November 2010 and 26 October 2012; or

(ii) 36 months of the date of acquisition if the property was acquired on or after 27 October 2012.

· Persons who are not HKPRs (including non-HKPRs who sign an agreement for sale in the capacity of a trustee on behalf of an HKPR, unless the HKPR is a mentally incapacitated person).

· HKPRs not acquiring the property on his/her own behalf, i.e. an HKPR who does not own both the legal and beneficial interest in the property.

·  Companies.

· Persons who are not HKPRs.

·  HKPRs who own more than 1 residential property.

· HKPRs not acquiring the property on his/her own behalf, i.e. an HKPR who does not own both the legal and beneficial interest in the property.

· HKPRs who are acquiring any non‑residential property.

· Companies.

Exemptions/Reliefs:

· Acquisition of a residential property by a HKPR acting on his own behalf (i.e. who will hold both the legal and beneficial interest in the property).

· Acquisition of a residential property by a HKPR who is acting on his own behalf (i.e. who will hold both the legal and beneficial interest in the property) and who does not own any other residential property in Hong Kong at the time of the acquisition or acquisition of a residential property by two or more HKPRs jointly as co-owners or joint owners where each is acting on his own behalf and does not own any other residential property in Hong Kong at the time of acquisition.

· Acquisition of a residential property by a HKPR jointly with a spouse, parents, children, brothers or sisters (each a Close Relative [5]) (who are not themselves HKPRs) where each purchaser is acting on his own behalf. If the HKPR acquires a residential property jointly with a person who is not a Close Relative, BSD will be payable.

· Acquisition of a residential property by a HKPR jointly as co-owner or joint owner with a Close Relative who is not an HKPR and each of the purchasers is acting on his own behalf and does not own any other residential property in Hong Kong at the time of acquisition (Original AVSD will apply). If the Close Relative does own other residential property in Hong Kong, New AVSD will be payable. If the HKPR acquires residential property with a person who is not a Close Relative, New AVSD will be payable.

· Nomination of a Close Relative.

· Nomination of a Close Relative (who is/are not themselves HKPRs) of the HKPR’s property where each nominee is acting on his own behalf. Nomination of a person who is not a HKPR and who is not a Close Relative will be liable for BSD.

· Nomination of a Close Relative (be they a HKPR or not) who owns another residential property in Hong Kong at the time of nomination (Original AVSD will apply). If the Close Relative does not own any other residential property in Hong Kong at the time of nomination, the nomination will be exempt from Original AVSD.

· Addition/deletion [6] of name(s) of a person(s) to/from a chargeable agreement for sale or a conveyance on sale if the person(s) so added or deleted is a Close Relative.

· Addition/deletion of name(s) of persons(s) who are not HKPR to/from a chargeable agreement for sale or a conveyance on sale in respect of residential property if the person(s) is/are a Close Relative of the original purchaser(s) and each person is acting on his/her own behalf. If a person added/deleted is not a Close Relative, BSD will be payable.

· Addition/deletion of a Close Relative to a chargeable agreement for sale or a conveyance on sale in respect of residential property will be exempt from all stamp duty unless the person so added or removed already owns a residential property in Hong Kong, whereupon Original AVSD will be chargeable on such person’s share of the property. If the person added/deleted is not a Close Relative, New AVSD will be chargeable on the interest acquired by such person in the residential property.

· Transfer of a residential property to a Close Relative.

· Transfer of a residential property to a Close Relative who is not a HKPR.

· Acquisition or transfer of residential properties between Close Relatives, irrespective of whether they are HKPRs and whether they are beneficial owners of any other residential property in Hong Kong at the time of the acquisition or transfer – Original AVSD applies.

· If an HKPR owns 1 residential property and then acquires a subsequent residential property with the intention that the second residential property will replace the first, the HKPR will pay New AVSD in the first instance but may seek a refund of the amount paid in excess of Original AVSD if the first property is disposed of within 6 months from the date upon which the HKPR executed the agreement to acquire the second property. The refund must be applied for within 2 years.

· Sale or transfer of residential properties by a court order or pursuant to a court order. The exemption covers a compulsory sale of residential property under a Compulsory Sale Order granted under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap.545), and also any sale of residential property where the residential property was transferred to or vested in the vendor by or pursuant to any decree or order of any court, including a foreclosure order obtained by the mortgagee whether or not it falls under the definition of a financial institution within the meaning of section 2 of the Inland Revenue Ordinance (Cap.112).

· The acquisition or transfer of a residential property by a court order or pursuant to a court order, which includes a foreclosure order obtained by a mortgagee whether or not it falls under the definition of a financial institution within the meaning of section 2 of the Inland Revenue Ordinance (Cap.112). The exemption also includes the acquisition of a residential property by a person to replace another residential property which was owned by that person and that has been

- purchased or acquired pursuant to redevelopment projects pursued by the Urban Renewal Authority,

- resumed or purchased under the Lands Resumption Ordinance (Cap.124),

- sold pursuant to an order for sale made by the Lands Tribunal under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap.545),

- resumed under an order made under the Mass Transit Railway (Land Resumption and Related provisions) Ordinance (Cap. 276),

- resumed under an order made under the Roads (Works, Use and Compensation) Ordinance (Cap. 370),

- resumed under an order made under the Railways Ordinance (Cap. 519),

- acquired under an acquisition order made under the Land Acquisition (Possessory Title) Ordinance (Cap. 130),

- resumed under an order made under the Land Drainage Ordinance (Cap.446),

- and the person is acting on his/her own behalf.

·  The acquisition or transfer of a property by a court order or pursuant to a court order, which includes a foreclosure order obtained by a mortgagee whether or not it falls under the definition of a financial institution within the meaning of section 2 of the Inland Revenue Ordinance (Cap.112). The exemption also includes the acquisition of a property by a person to replace another property which was owned by that person (the replacement property must be of the same type as the original property, e.g. they must both be residential) and that has been purchased or acquired pursuant to redevelopment projects pursued by the Urban Renewal Authority, or is resumed under the Lands Resumption Ordinance (Cap.124) or purchased under Section 4A of that Ordinance, or is sold pursuant to an order for sale made by the Lands Tribunal under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap.545) and the person is acting on his/her own behalf. Original AVSD applies.

Sale of mortgaged residential properties in various forms by a mortgagee which is a financial institution within the meaning of section 2 of the Inland Revenue Ordinance (Cap.112), or by a receiver appointed by such a mortgagee.

Transfer of a mortgaged residential property under a conveyance to a mortgagee which is a financial institution within the meaning of section 2 of the Inland Revenue Ordinance (Cap.112), or by a receiver appointed by such a mortgagee.

Transfers of a mortgaged property (residential or non-residential) to a mortgagee which is a financial institution within the meaning of section 2 of the Inland Revenue Ordinance (Cap.112), or to a receiver appointed by such mortgagee.

Sale or transfer of residential properties (including bare sites) after demolishing the original residential properties thereon for the purpose of constructing redeveloped ones.

Upon becoming the owner (alone or jointly with an associated body corporate) of the entire lot to be redeveloped, relief will be given by way of a refund of the BSD paid if the following conditions are satisfied:

(a)   obtained consent to commence any foundation works for the lot (whether or not together with any other lot) from the Building Authority under the Buildings Ordinance (Cap.123); or

(b)   (i) demolished or caused to demolish all buildings (if any) existing on the lot, other than a building the demolition of which is prohibited under any ordinance; and

(ii) obtained approval of plans in respect of building works to be carried out on the lot (whether or not together with any other lot) from the Building Authority under the Buildings Ordinance (Cap.123).

Upon becoming the owner (alone or jointly with an associated body corporate) of the entire lot to be redeveloped, relief will be given by way of a refund of the amount of New AVSD paid which was in excess of the amount of Original AVSD which would previously have been paid. This relief can be obtained if the following conditions are satisfied:

(a) obtained consent to commence any foundation works for the lot (whether or not together with any other lot) from the Building Authority under the Buildings Ordinance (Cap.123); or

(b)  (i)  demolished or caused to demolish all buildings (if any) existing on the lot, other than a building the demolition of which is prohibited under any ordinance; and

(ii)  obtained approval of plans in respect of building works to be carried out on the lot (whether or not together with any other lot) from the Building Authority under the Buildings Ordinance (Cap.123).

Sale of the estate of a deceased person, which involves residential property, by the executor or personal representative, and sale or transfer of a residential property by a person whose property is inherited from a deceased person’s estate or passed to that person under the right of survivorship.

A non-HKPR is not liable to BSD on inheriting a residential property from a deceased person’s estate because residential property which is inherited from a deceased person’s estate under a will, the law of intestacy or right of survivorship by a beneficiary is exempted from stamp duty.

Transfer of a residential or non-residential property to a beneficiary of the estate of a deceased person in accordance with that provided under a will or the law of intestacy (exempt from stamp duty).

Relief can be applied for in respect of the sale or transfer of residential properties between associated [7] bodies corporate (provided that the transferee does not cease to be so associated within 2 years).

Relief can be applied for in respect of the acquisition or transfer of a residential property by or to a body corporate from an associated body corporate (provided that the transferee does not cease to be so associated within 2 years).

Relief can be applied for (such that neither New AVSD or Original AVSD) in respect of the acquisition or transfer of a residential or non-residential property by or to a body corporate from an associated body corporate (provided that the transferee does not cease to be so associated within 2 years).

· The residential property sold relates solely to a bankrupt’s estate or the property of a company which is being wound up by the court by reason of its inability to pay debts.

· Sale or transfer of residential properties to the Government.

· Acquisition or transfer of residential properties by or to the Government.

· Acquisition or transfer of residential or non-residential properties by or to the Government.

· Gift of residential properties to charitable institutions exempted from tax under section 88 of the Inland Revenue Ordinance (Cap.112).

·  Gift of residential properties to charitable institutions exempted from tax under section 88 of the Inland Revenue Ordinance (Cap.112).

· Gift of residential or non-residential properties to charitable institutions exempted from tax under section 88 of the Inland Revenue Ordinance.

Liability to pay:

Vendor and purchaser jointly and severally liable at law, irrespective of any agreement to the contrary between them (it is customary for the agreement for sale to provide that the purchaser pays the whole amount).

Purchaser or transferee liable at law, irrespective of any agreement to the contrary between them (it is customary for the agreement for sale to provide that the purchaser pays the whole amount).

Vendor and purchaser jointly and severally liable at law, irrespective of any agreement to the contrary between them (it is customary for the agreement for sale to provide that the purchaser pays the whole amount).

Penalties for non-payment:

Any person failing to pay SSD by the due date is liable to a late stamping penalty of up to 10 times the amount of the SSD payable. Any unpaid SSD and the applicable penalty are recoverable by the Stamp Office as a civil debt from all the liable parties.

Any person failing to pay BSD by the due date is liable to a late stamping penalty of up to 10 times the amount of the BSD payable. Any unpaid BSD and the applicable penalty are recoverable by the Stamp Office as a civil debt from all the liable party(ies).

Any person failing to pay New AVSD or Original AVSD by the due date is liable to a late stamping penalty of up to 10 times the amount of the duty payable. Any unpaid duty and the applicable penalty are recoverable by the Stamp Office as a civil debt from all the liable parties.

Date upon which payment is due:

Within 30 days of the date of execution of a chargeable agreement for sale (or conveyance for sale where there is no chargeable agreement for sale).

(i.e. This does not become due until the disposal within the relevant period.)

Within 30 days of the date of execution of a chargeable agreement for sale (or conveyance for sale where there is no chargeable agreement for sale).

Within 30 days of the date of execution of a chargeable agreement for sale (or conveyance for sale where there is no chargeable agreement for sale). This changes the previous position, which provided that payment on non-residential properties was to be made within 30 days of the date of the conveyance on sale (assignment).

Transitional Measures:

· Before the Stamp Duty (Amendment) Bill 2012 is enacted, the stamp duty which would have been payable as at 26 October 2012 will be payable on chargeable agreements for sale.

·  Any additional duty will be payable within 30 days commencing immediately after the date of gazettal of the amendment ordinance (i.e. on or before 31 March 2014).

Chargeable cases

If the time for stamping any instrument chargeable with BSD begins before the Stamp Duty (Amendment) Ordinance 2014 was published in the gazette (i.e. 28 February 2014), the time for payment is 30 days commencing immediately after the date of gazettal (i.e. on or before 31 March 2014).

Non-chargeable cases

(a)   For any claim that the purchaser is a HKPR and is acting on his own behalf, relevant documents are to be submitted within 2 months after the date of gazettal (i.e. on or before 30 April 2014).

(b)   For any claim for exemption for other reasons, relevant documents are to be submitted within 2 months after the date of gazettal (i.e. on or before 30 April 2014). 

· Before the Stamp Duty (Amendment) Bill 2013 is enacted, the stamp duty which would have been payable as at 22 February 2013 will be payable on conveyances for sale in respect of non-residential property and on chargeable agreements for sale in respect of residential property.

·  Any additional duty will be payable within 30 days commencing immediately after the date of gazettal of the amendment ordinance.

Refunds:

If the agreement for sale is cancelled, revoked or rescinded or is otherwise not performed (other than for the purpose of a further resale such as confirmor sale or nomination of another buyer), the party who paid the stamp duty can apply for a refund within 2 years of the date of cancellation, revocation or rescission of the agreement.

If the agreement for sale is cancelled, revoked or rescinded or is otherwise not performed (other than for the purpose of a further resale such as confirmor sale or nomination of another buyer), the purchaser/transferee can apply for a refund within 2 years of the date of cancellation, revocation or rescission of the agreement.

If the agreement for sale is cancelled, revoked or rescinded or is otherwise not performed (other than for the purpose of a further resale such as confirmor sale or nomination of another buyer), the party who paid the stamp duty can apply for a refund within 2 years of the date of cancellation, revocation or rescission of the agreement.

Holding Period

Rate

Property acquired prior to 20 November 2010:

· N/A

· N/A

Property acquired between 20 November 2010 and 26 October 2012:

· Six months or less

· 15%

· More than 6 months but for 12 months or less

· 10%

· More than 12 months but for 24 months or less

· 5%

Property acquired on or after 27 October 2012:

· Six months or less

· 20%

· More than 6 months but for 12 months or less

· 15%

· More than 12 months but for 36 months or less

· 10%

Consideration or value of the property (whichever is the higher) in HK$

New AVSD Rate

Up to 2,000,000

1.5%

2,000,001 to 2,176,470

$30,000 + 20% of the excess over $2,000,000

2,176,471 to 3,000,000

3.00%

3,000,001 to 3,290,330

$90,000 + 20% of the excess over $3,000,000

3,290,331 to 4,000,000

4.5%

4,000,001 to 4,428,580

180,000 + 20% of the excess over $4,000,000

4,428,581 to 6,000,000

6.00%

6,000,001 to 6,720,000

$360,000 + 20% of the excess over $6,000,000

6,720,001 to 20,000,000

7.5%

20,000,001 to 21,739,130

$1,500,000+20% of the excess over $20,000,000

21,739,131 and above

8.5%

Consideration or value of the property (whichever is the higher) in HK$

Original AVSD Rate

Up to 2,000,000

$100

2,000,001 to 2,351,760

$100 + 10% of excess over $2,000,000

2,351,761 to 3,000,000

1.5%

3,000,001 to 3,290,320

$45,000 + 10% of excess over $3,000,000

3,290,321 to 4,000,000

2.25%

4,000,001 to 4,428,570

$90,000 + 10% of excess over $4,000,000

4,428,571 to 6,000,000

3%

6,000,001 to 6,720,000

$180,000 + 10% of excess over $6,000,000

6,720,001 to 20,000,000

3.75%

20,000,001 to 21,739,120

$750,000 + 10% of excess over $20,000,000

21,739,121 and above

4.25%